Media Regulation: EU greenlights Germany’s new Inter-State Treaty on Media

Smart TVs, app stores, social media, video sharing platforms, search engines, virtual language assistants and even “social bots” - Germany will impose new rules. Maximilian König and Christoph Krück inform about the new Inter-State Treaty on Media.

Once upon a time, television was “linear only” and that was the time when Germany set the rules for its audiovisual media landscape. The current Inter-State Treaty on Broadcasting came into force in Germany in 1991. For five years now, the federal states in Germany have been working on a new state treaty adapting the regulations to the new realities: The new Inter-State Treaty on Media ("Medienstaatsvertrag").

What does the new State Treaty on Media regulate?

The new regulation intends to take technological developments and media convergence into account, and to ensure media diversity. The reform includes the expansion of license-free broadcasting. It imposes transparency and non-discrimination rules on platforms, and also “must carry”-privileges to public broadcasting programs and large private broadcasters. Also specific media content, such as journalistic content, should be easy to find and may not be discriminated and altered. The treaty is also about transparency and the regulation of algorithms of online platforms, and many more.

EU gives green light – but what are the conflicts?

Until recently, the compliance with European law has been discussed – and is likely to continue: The draft Treaty creates rules for services that are “intended for use in Germany”. This conflicts with the country-of-origin principle from the E-Commerce Directive. Also conflicts with the Directive on Audiovisual Media Services were discussed, and the compatibility with the liability privileges for host providers. Also, on a national level in Germany many other aspects will continue to be discussed critically, e.g. such as the details of the non-discrimination principles for platforms regarding journalistic content.

In the end, the EU Commission had comments - we will be happy to inform about them in detail as soon as they are available - but this will not constitute an obstacle to the execution of the treaty in Germany. Theoretically, however, it would be possible to take up the conflicts again in an EU law infringement procedure.

Coming into force in Germany in autumn?

For now, the Treaty will be signed by the heads of the federal states in Germany, and then the various state parliaments will have to approve it. If they do so, the aim is that the Treaty enters into force in autumn this year.

EU plans further regulation of online platforms - “Digital Services Act”

In their comments the EU Commission criticizes to regulate cross-border services with national rules. It stressed again in this context that it also wants to further promote the regulation of platforms on an EU level: The intention is to propose a legislative package for digital services by the end of this year – this will be the already announced “Digital Services Act”.

See the EU press release from April 28, 2020.